Hamilton County. HONORABLE JOSEPH F. DIRISIO, JUDGE, Post-Conviction.
Permission to Appeal Denied November 30, 1987
John K. Byers, Judge, Joe D. Duncan, Judge, Allen R. Cornelius, Jr., Judge, Concur.
The opinion of the court was delivered by: Byers
The trial court dismissed the petitioner's petition for post-conviction relief, which alleged he was denied the effective assistance of counsel in his convicting trial. The petitioner appeals from that judgment.
The judgment is affirmed.
The petitioner was convicted of first degree murder, and in a bifurcated proceeding the jury fixed the death penalty. The petitioner offered no evidence of mitigating factors in the sentencing phase; nor did he testify in that portion of the trial.
The petitioner complains that his trial attorney failed to develop proof of the mental deficiencies which his client suffered and failed to introduce medical evidence of his mental condition as a defense to the charge or in mitigation of the punishment.
To support this thesis, the petitioner, at the hearing on his petition, offered the testimony of alleged expert witnesses and members of his own family.
Concerning the two witnesses, one was not expert, and the other, if at all, was not qualified to give an opinion as an expert in this case.
One of these witnesses, an ordained minister, with no legal training and limited experience, testified it was his opinion the attorney should have used those portions of the medical reports which were beneficial to the petitioner. He was of the view the attorney is required to "pull out" the beneficial part of the record and whether these were used in their totality was up to the attorney. The record shows this witness was unaware that once the records are introduced the entire record may be explored by the state.
This was particularly pertinent in this case because the record shows that petitioner's counsel could not show the petitioner was insane and all the medical evidence would show the petitioner was an aggressive, anti-social person who had previously committed serious violent acts toward others.
The attorney who attacked the competency of the original counsel had not read the transcript of the trial and was unaware of the contends of the medical records. He had never discussed the case with the original trial attorney.
Both of these alleged experts testified they were opposed to the death penalty. In this case there is no evidence to support their opinions that counsel was incompetent, and their ...